Tag: censorship

A Law Professor’s Beef With a First Amendment ‘Spinning Out of Control’: Too Much Speech of the Wrong Sort

“The First Amendment is spinning out of control,” Columbia law professor Tim Wu warns in a New York Times essay. While Wu ostensibly objects to Supreme Court decisions that he thinks have interpreted freedom of speech too broadly, his complaint amounts to a rejection of the premise that the principle should be applied consistently, especially when it benefits speakers and messages he does not like.

The immediate provocation for Wu’s diatribe is yesterday’s Supreme Court decisions in two cases challenging Florida and Texas laws that aimed to restrict content moderation on social media. Although the justices remanded both cases for further consideration by the lower courts, Justice Elena Kagan’s majority opinion in Moody v. NetChoice made it clear that the “editorial discretion” protected by the First Amendment extends to the choices that social media platforms make in deciding which content to host and how to present it, even when those decisions are inconsistent, biased, or arguably unfair. And that discretion, she said, includes the use of algorithms that reflect such value judgments.

Although Wu has reservations about “the wisdom and questionable constitutionality of the Florida and Texas laws,” he thinks “the breadth of the court’s reasoning should serve as a wake-up call.” He faults the justices for “blithely assuming” that “algorithmic decisions are equivalent to the expressive decisions made by human editors at newspapers.” The ruling, Wu says, reflects a broader trend in which “liberal as well as conservative judges and justices have extended the First Amendment to protect nearly anything that can be called ‘speech,’ regardless of its value or whether the speaker is a human or a corporation.”

As Wu sees it, freedom of speech should hinge on the “value” of the ideas that people express. It is hard to imagine a broader license for government censorship.

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Supreme Court Demands Deeper Look at Social Media Anti-Censorship Laws

The US Supreme Court has unanimously remanded two crucial cases involving social media regulation laws from Florida and Texas back to lower courts. This move concerns cases relating to both Florida and Texas, where the primary question was whether laws that restrict certain websites from making editorial censorship decisions violate the First Amendment.

On May 24, 2021, Florida Governor Ron DeSantis signed into law SB 7072, which aims to regulate social media platforms by prohibiting the deplatforming of political candidates and requiring platforms to provide explanations when censoring content, among other stipulations.  SB 7072 places several specific restrictions and requirements on social media platforms, including:

  • Prohibiting the willful deplatforming of political candidates,
  • Banning the censorship or deplatforming of journalistic enterprises based on content,
  • Imposing hefty fines on social media platforms that deplatform candidates for political office—up to $250,000 per day for statewide candidates and $25,000 per day for other candidates,
  • Requiring platforms to notify users and provide explanations before taking actions like censoring or deplatforming,
  • Granting Floridians the right to sue platforms for violations and seek monetary damages,
  • Empowering the Florida Attorney General to sue technology companies under the state’s Unfair and Deceptive Trade Practices Act,

That same year, Texas Governor Greg Abbott signed HB 20, a law regulating social media platforms by prohibiting them from censoring content based on viewpoint and imposing several obligations related to content moderation processes.

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Free Speech Legislation Gains Attention Following Supreme Court Siding with Biden in Social Media Censorship Case

US House Judiciary Committee Chairman Jim Jordan has reacted to Wednesday’s ruling by the Supreme Court (SCOTUS) in the Murthy v. Missouri case, to call for new legislation that would, going forward, reinforce the rules, already contained in the First Amendment, meant to protect citizens from government-orchestrated censorship.

Jordan, whose Committee is probing alleged government-Big Tech collusion in violation of the First Amendment through the Select Subcommittee on the Weaponization of the Federal Government, noted that the US Constitution’s First Amendment is “first for a reason.”

According to the Republican congressman, free speech that this amendment protects (from government intervention) should extend to any government infringement – be it in Congress, or online.

Jordan said that while respectfully disagreeing with the SCOTUS ruling the Committee’s own oversight “has shown the need for legislative reforms.”

“While we respectfully disagree with the Court’s decision, our investigation has shown the need for legislative reforms, such as the Censorship Accountability Act, to better protect Americans harmed by the unconstitutional censorship-industrial complex,” Jordan wrote in a statement.

In other words, the increasingly pressing issue of how the government “interacts” with social platforms (because of their massive reach and therefore influence among the electorate) should be put into the hands of courts and their interpretations based on new and clear legislation to guide those decisions.

The Judiciary Committee chairman mentioned the Censorship Accountability Act – a bill that would let citizens launch legal action against federal employees suspected of colluding to suppress free speech.

Regardless of the SCOTUS decision, Jordan pledged that the Committee’s “important work will continue” – stating that the Subcommittee’s thus far “uncovered how and the extent to which the Biden Administration engaged in a censorship campaign in violation of the First Amendment.”

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Jim Jordan Investigates Stanford Internet Observatory Monitoring Election Speech for 2024

Recently the news arrived that what opponents see as a key linchpin in the government-Big Tech censorship collusion, the Stanford Internet Observatory (SIO), was winding back its operations.

But before it does, the House Judiciary Committee and the Select Subcommittee on the Weaponization of the Federal Government want to gain access to information requested through a previous subpoena.

On Monday, Chairman Jim Jordan sent a letter to SIO’s legal representative, the main point being the Committee’s desire to make sure that neither SIO, other groups operating as part of the university, nor any group that might succeed SIO will continue with their “disinformation studies” ahead of the 2024 presidential election.

We obtained a copy of the letter for you here.

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Fact-Checking Network Says Online Fact Checks Aren’t Censorship

We now live in a world where “fact-checkers” organize “annual meetings” – one is happening just this week in Bosnia and Herzegovina.

These censorship-overseers for other companies (most notably massive social platforms like Facebook, etc.) have not only converged onto Sarajevo but have issued a “statement” that includes the town’s name.

The Poynter Institute is a major player in this space, and its International Fact-Checking Network (IFCN) serves to coordinate censorship for Meta, among others.

It was up to IFCN now to issue the “Sarajevo statement” on behalf of 130 groups in the “fact-checking” business, a burgeoning industry at this point spreading its tentacles to at least 80 countries – that is how many are behind the said statement.

No surprise, these “fact-checkers” like themselves, and see nothing wrong with what they do; the self-affirming statement refers to the (Poynter-led) brand of “fact-checking” as essential to free speech (will someone fact-check that statement, though?)

The reason the focus is on free speech is clear – “fact-checkers” have over and over again proven themselves to be either inept, biased, serving as tools of censorship, all three, or some combination of those.

That is why their “annual meeting” now declares, with a seemingly straight face, that “fact-checking” is not only a free-speech advocate but “should never be considered a form of censorship.”

But who’s going to tell Meta? In the wake of the 2016 US presidential elections, Facebook basically became the fall guy picked by those who didn’t like the outcome of the vote, accusing the platform of being the place where a (since debunked) massive “misinformation meddling campaign” happened.

Aware of the consequences its business might suffer if such a perceived image continued, Facebook by 2019, just ahead of another election, had as many as 50 “fact-checking” partners, “reviewing and rating” content.

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Bipartisan Vote Blocks CISA Budget Cut Despite Speech Censorship Concerns

104 Republicans and 198 Democrats voted to uphold a proposed budget increase for the Cybersecurity and Infrastructure Security Agency (CISA) in the defense appropriations bill. Representative Andrew Clyde from Georgia proposed an amendment to freeze CISA’s funding at its 2024 level, which would reduce the budget by just over 2% to $2,379,485,00. During a forceful speech on the House floor, Clyde criticized the agency for misusing its resources to suppress dissenting opinions.

The vote came just following the Supreme Court siding with the Biden administration’s partnership with tech giants to encourage the suppression of social media content, overturning the injunction by alleging that the case lacked standing.

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The Court Green-Lights Censorship

In 1919, the Supreme Court used the pretext of crisis to overhaul the First Amendment as it jailed critics of the Great War. Over a century later, the Court has again fallen victim to the Beltway’s prevailing zeitgeist in today’s regrettable decision in Murthy v. Missouri. 

The Court’s opinion, written by Justice Amy Coney Barrett, rejects the lower court’s injunction against many government agencies to stop leaning on social media companies to curate content, and does so on grounds that the plaintiffs lack standing. 

The opinion rests on omitted facts, skewed perceptions, and absurd conclusory statements. The dissent, issued by Justice Samuel Alito and joined by Justices Neil Gorsuch and Clarence Thomas, masterfully recounts the facts of the case and the inconsistency of the majority. 

Justice Barrett’s opinion completely ignored the Court’s decision last week in National Rifle Association v. Vullo. In that case, the Court held that New York officials violated the NRA’s First Amendment rights by launching a campaign to coerce private actors to “punish or suppress the NRA’s gun-promotion activities.” 

Justice Sotomayor issued the opinion for a unanimous Court, writing, “Government officials cannot attempt to coerce private parties in order to punish or suppress views that the government disfavors.” 

In Murthy, the majority did not even attempt to differentiate the case from its clear precedent in Vullo. Justice Alito, however, explained the ominous message the Court sent through the two opinions.

What the officials did in this case was more subtle than the ham-handed censorship found to be unconstitutional in Vullo, but it was no less coercive. And because of the perpetrators’ high positions, it was even more dangerous. It was blatantly unconstitutional, and the country may come to regret the Court’s failure to say so. Officials who read today’s decision together with Vullo will get the message. If a coercive campaign is carried out with enough sophistication, it may get by.

Further, the majority opinion is bereft of references to the perpetrators, their “high positions,” or their statements of coercion. Justice Barrett does not mention Rob Flaherty or Andy Slavitt – the two main henchmen behind the Biden Administration’s censorship efforts – a single time in her holding. The dissent, however, devotes pages to recounting the White House’s ongoing censorship campaign.

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SCOTUS Declines To Punish the Feds for Suppressing Social Media Speech

The Supreme Court will allow federal agencies to resume widespread communication with social media companies for the purposes of suppressing controversial speech. For everyone who was perturbed by the Twitter Files and Facebook Files—which revealed a vast web of government pressure on private actors, called jawboning—this is a regrettable outcome.

The case was Murthy v. Missouri—also known as Missouri v. Biden—and involved a group of individuals who were kicked off Facebook and Twitter. They contended that the platforms took such actions at the behest of the federal government. The Court held 6-3 that the plaintiffs lacked standing to bring such a case and thus the lower court, the 5th Circuit, erred in prohibiting the government from engaging in said communications with social media companies.

Writing for the majority, Associate Justice Amy Coney Barrett explained that the plaintiffs failed to offer up overwhelming evidence that government malfeasance was the cause of their woe.

“The primary weakness in the record of past restrictions is the lack of specific causation findings with respect to any discrete instance of content moderation,” she wrote. “And while the record reflects that the Government defendants played a role in at least some of the platforms’ moderation choices, the evidence indicates that the platforms had independent incentives to moderate content and often exercised their own judgment. The Fifth Circuit, by attributing every platform decision at least in part to the defendants, glossed over complexities in the evidence.”

In his writeup for The Volokh Conspiracy, Case Western Reserve University law professor Jonathan Adler notes other standing issues: The plaintiffs failed to show that a repeat injury was likely, for instance, which is a requirement for injunctive relief.

“The Court emphasizes that it is always more difficult to show standing when the alleged injury ‘results from the independent action of some third party not before the court,’ in this case the social media companies,” writes Adler.

Three of the justices—Samuel Alito, Clarence Thomas, and Neil Gorsuch—saw matters differently. In dissent, Alito expressed the view that the plaintiffs were being held to too high a standard, and that the evidence of government suppression was quite extensive.

“In sum, the officials wielded potent authority,” wrote Alito. “Their communications with Facebook were virtual demands. And Facebook’s quavering responses to those demands show that it felt a strong need to yield.”

Alito’s dissent includes a lengthy summary of the dubious actions taken by the federal government to induce social media companies to remove contrarian COVID-19 content; the justice concludes that White House communications staffers badgered Facebook into compliance.

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The U.S. Power Structure is Blindly Dedicated to Israel

Recently there was an important event at Columbia Law School. The school’s law review published a piece on a sweeping legal theory of the Nakba by Harvard law student Rabea Eghbariah — and the board of the law review stepped in in unprecedented fashion to shut down the publication online. After the Intercept reported that the website had been “nuked,” the authoritarian move became an embarrassment; and the piece was restored. Though students obviously feel chilled.

This story reminds us that the U.S. establishment is firmly and blindly pro-Israel. The board that squashed the students included operators of the highest order: professor Gillian Metzger, who also serves in the Justice Department’s Office of Legal Counsel; Justice Department senior counsel Lewis Yelin; and Ginger Anders, a former assistant to the U.S. Solicitor General.

We used to call people like this the ruling class. These high appointees understand what American values are, and today American values are standing by Israel even as it massacres thousands of children. These values surely have to do with the importance of Zionist donors to Joe Biden and universities, but they go beyond that to the makeup of the U.S. establishment. Pro-Israel voices — including Jewish Zionists — are a significant element of corporate culture. They are a generational force. Young progressives and young Jews are rejecting Israel. But they aren’t in the power structure.

One of the most telling stories about the establishment came and went last November. Two dozen leading law firms sent a letter to the leading law schools, including Harvard and Columbia, saying that they would not hire students from law schools that failed to crack down on antisemitism. And one of those firms, Davis Polk, rescinded job offers to three students who had taken part in pro-Palestinian protests. The letter said:

“We look to you to ensure your students who hope to join our firms after graduation are prepared to be an active part of workplace communities that have zero tolerance policies for any form of discrimination or harassment, much less the kind that has been taking place on some law school campuses.”

A partner at Sullivan & Cromwell told the New York Times that Jewish students feel “actually scared,” “threatened,” and “betrayed.” 

The letter was a shot across the bow of prestige schools well before Congress brought down the boom on the Harvard and Penn presidents in December. After all, the function of these schools — the reason young people clamor to get into them — is to gain employment in prestigious jobs upon graduation.

Just a week after the letter — shockingly — Columbia suspended the Palestinian solidarity groups Students for Justice in Palestine (SJP) and Jewish Voice for Peace (JVP).

The law firms’ letter was “spearheaded,” the firm Paul, Weiss bragged at the time, by two Jewish chairs at two white-shoe firms (Joe Shenker, former chair of Sullivan and Cromwell, and Brad Karp, current chair at Paul, Weiss).

The letter was published at a time when many corporate leaders were issuing condemnations of the Hamas attack on Israel. Paul, Weiss chair Brad Karp explained to the Times that he was disappointed that more leaders weren’t doing so — and that being for Israel was no different than other great progressive causes, civil rights and women’s rights included.

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‘Amazon Files’: Emails Show Amazon Caved to Pressure From White House to Suppress Books Critical of Vaccines

In addition to pressuring social media platforms to censor content during the COVID-19 pandemic, the Biden administration also worked with Amazon to suppress books questioning the safety or efficacy of vaccines, according to internal emails obtained through a series of subpoenas, Fox Business reported.

The emails — dubbed “The Amazon Files” — were included in a report by the U.S. House of Representatives Committee on the Judiciary and the Select Subcommittee on the Weaponization of the Federal Government.

In a June 21 post on X (formerly Twitter), Committee Chair Jim Jordan shared a list of 43 books that Amazon initially added to a newly created “Do Not Promote” class of allegedly anti-vaccine books.

The No. 2 book on the list — “Vaccine Epidemic” — was co-authored and edited by Children’s Health Defense (CHD) CEO Mary Holland, CHD General Counsel Kim Mack Rosenberg and Louise Kuo Habakus.

The first book on the list is, “Dissolving Illusions: Disease, Vaccines, and the Forgotten History” by Dr. Suzanne Humphries and Roman Bystrianyk.

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